City Journal Autumn 2014

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Autumn 2014
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Books and Culture

Jared Meyer
Judge More
It’s not judicial activism, but judicial abdication, that enables government overreach, a new book argues.
1 August 2014
Photo by Greg Westfall

Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, by Clark M. Neily III (Encounter Books, 232 pp., $23.99)

When the checks and balances designed by the Constitution’s Framers break down, says Clark Neily in his brisk new book, Terms of Engagement, personal liberty is often the victim. A senior litigator at the libertarian Institute for Justice, Neily highlights government’s tendency to ignore constitutional limitations on its powers and meddle in citizens’ lives. He cites the well-known Kelo v. City of New London decision, which represented a clear abuse of eminent domain, and the tragic example of Sandy Meadows, a Louisiana florist who died in poverty after the state occupational-licensing commission forced her out of work. But Neily also spotlights more obscure but no less egregious cases.

Neily focuses on a problem he calls “judicial abdication.” Since the 1930s, he argues, judges have abandoned their old role as “bulwarks of liberty,” increasingly deferring responsibility to the other two branches of government. The result: an ever-growing government that infringes on individual freedom, in defiance of the Framers’ vision. “The Constitution imposes substantial limits on government power,” he writes. “Our judiciary, for the most part, does not.” Critics typically argue that judicial activism creates new rights not contained in the Constitution. But judicial abdication, as Neily sees it, is the more serious problem, allowing government to expand its power steadily. Over the last 50 years, the Supreme Court struck down less than half of 1 percent of all federal laws, and far fewer state laws.

According to Neily, rights fall into two categories: fundamental and non-fundamental. Fundamental rights include the right to free speech and the right to vote. When government violates these rights, the victim can usually rely upon the courts to treat his claims seriously. In the case of non-fundamental rights, however—such as the right to earn a living or keep your property—judges frequently act as advocates for the government, seeking only to determine whether a law, regardless of its merits, relates to a legitimate government interest. Judges often rule that the law in question is constitutional and the government’s actions justified.

Neily imagines a hypothetical law making it illegal to advertise coconut water because it presents a danger to the public. In such a case, a judge would require the government to prove that coconut water was truly dangerous, because the law in question abridges freedom of speech, a fundamental right that enjoys meaningful judicial protection. If, however, the law barred not the advertising but the sale of coconut water, a judge applying this so-called “rational-basis” test would place the burden of proving that coconut water was safe on those challenging the government’s ban, because the law abridges commercial activity—a non-fundamental right.

At the core of these distinctions is a truth that courts increasingly overlook: namely, that Americans enjoy more rights than those the Constitution enumerates. Many Framers opposed the Bill of Rights precisely because they didn’t want the American people to think that they had only these spelled-out rights and no others. To quell their unease, James Madison proposed the principle made clear in the Ninth and Fourteenth amendments: that enumerated and unenumerated rights are to be protected equally. Over time, courts have forgotten this.

Neily calls for an “engaged,” as opposed to activist, judiciary. Engaged judges exercise their constitutional duties, while active judges hold policy preferences in higher esteem than the Constitution. An engaged judiciary protects minorities from the majority and enables prosperity. A healthy American civic culture and a dynamic economy both rely on individuals willing to break from the majority and blaze new paths. Neily’s call to rein in the executive and legislative branches of government is a timely one. Only a judicial branch that reengages with its constitutional responsibility can realize such a goal.

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